Citation Nr: 1418473
Decision Date: 04/25/14 Archive Date: 05/02/14
DOCKET NO. 11-00 501 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUE
Whether the reduction of the rating for a service-connected right hip strain from 20 to 10 percent as of October 1, 2010, was appropriate.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
N. Sangster, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1979 to August 1982.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
In support of his claim, the Veteran testified at a videoconference hearing in March 2014 before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, to this end, during the hearing the presiding VLJ clarified the issues and explained the basis of the prior determination denying this claim and discussed the elements of the claim that were lacking to substantiate entitlement to the claimed benefits. In addition, the VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing. To the contrary, the hearing focused on the evidence needed to substantiate the claim. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in § 3.103(c)(2).
A portion of the Veteran's records are in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide claims for benefits. Because this appeal was processed as part of the Virtual VA system, any future consideration of this appellant's claims should take into consideration the existence of this electronic record. Indeed, VA is in the process of transitioning to another, even newer, electronic claims processing system - the Veterans Benefits Management System (VBMS) - with the hope that it will allow for even faster processing of claims for benefits.
FINDINGS OF FACT
1. At the time of its reduction to 10 percent on October 1, 2010, the 20 percent rating for the service-connected right hip strain had been in effect since March 3, 1998, so for over 12 years.
2. In April 2010, the RO had notified the Veteran of this proposed reduction in the rating for this right hip strain, which included apprising him that he had 60 days to submit evidence contesting this intended action and to have hearing on the matter.
3. The evidence used to reduce the rating for this disability from 20 to 10 percent included the results of two VA compensation examinations, but neither of which showed permanent (sustained and material) improvement in this disability that would be maintained under the ordinary conditions of life and work.
CONCLUSION OF LAW
The RO satisfied the procedural due process requirements governing the proposed reduction in the rating for this disability, and in eventually implementing this reduction, but the reduction was unwarranted; therefore the prior rating for this disability must be reinstated retroactively effective as of October 1, 2010, the date it was reduced. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.105(e), 3.327, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Standard of Review
In deciding this claim, the Board has reviewed all of the evidence in the claims file, which as mentioned consist of both a physical claims file and electronic file (meaning paperless file), and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. Timberlake v. Gober, 14 Vet. App. 122 (2000).
The Board must assess the credibility and weight of all evidence, both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).
II. The Duties to Notify and Assist
The Veterans Claims Assistance Act (VCAA) describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
The notice requirements were met in this case by way of a letter sent to the Veteran in April 2010. The letter advised him of the type of information and evidence necessary to substantiate his claim and of his and VA's respective obligations in obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letter also, in particular, advised him of how rating reductions are determined and the evidence he could submit showing a reduction in rating was unwarranted. 38 C.F.R. § 3.105(e).
Also keep in mind the Board is reinstating the prior 20 percent rating retroactively effective from October 1, 2010, the date of its reduction to 10 percent. So the Veteran will receive this back pay, that is, the compensation he was not paid at the higher 20 percent level since October 1, 2010. Hence, he is being put back in the position he was at the time of the reduction in rating for this disability, thus, status quo.
The Board therefore is satisfied that all relevant facts have been adequately developed, to the extent possible, and that no further notice or assistance to the Veteran in developing the facts pertinent to this claim is required. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. There is no pleading or allegation of insufficient notice or assistance with this claim. And as the pleading party attacking the agency's decision, he, not VA, has this evidentiary burden of proof of establishing the occurrence of a VCAA notice or assistance error, but also, even above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
III. The Propriety of the Reduction from 20 to 10 Percent in the Rating for the
Service-Connected Right Hip Strain
The Veteran has appealed the RO's determination to reduce his disability rating for his right hip strain from 20 to 10 percent as of October 1, 2010.
Regulations pertaining to reductions in disability ratings provide that, where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payment currently being made, a rating action proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary will then be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e).
The requirements for a reduction in the evaluation for disabilities in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). The regulation also provides that, with respect to other disabilities that are likely to improve, e.g., those for evaluations have been in effect for less than five years, re-examinations disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155.
In this particular case at hand, a September 1999 rating decision granted service connection for the right hip strain and assigned a 20 percent disability rating retroactively effective from March 3, 1998, so back to the date of claim.
In November 2008, the Veteran's representative filed a claim for an increased rating for the right hip strain that was, at the time, still rated as 20-percent disabling. In a March 2009 rating decision, the RO continued the 20 percent disability rating. Also in that rating decision, a future VA compensation examination date in February 2010 was assigned to reassess the severity of the Veteran's right hip strain. He did not appeal that decision.
In an April 2010 rating decision, however, based on his failure to report for a March 2010 VA compensation examination, the RO informed him that it was proposing to reduce the rating for his right hip strain from 20 to 0 percent. The letter apprised him of his opportunity to submit medical or other evidence demonstrating that a reduction in the rating for this disability was unwarranted. The letter also informed him that he was entitled to a hearing on the matter, and that he should submit any such evidence and/or requests a hearing within 60 days from the date of that letter. The RO stated that it would reduce the rating as indicated otherwise.
The representative submitted a statement in response indicating the Veteran had not received notification of the March 2010 VA compensation examination and requested another appointment for an examination. See April 2010 statement.
The procedural due process requirements thus were met in terms of providing the required notice of the intended reduction in rating and giving the Veteran opportunity to be heard on the matter, including by submitting additional evidence showing the disability had not, in fact, improved, and testifying at a hearing. The RO issued a rating decision in April 2010 proposing the reduction in the disability rating for the Veteran's service-connected right hip strain from 20 to 0 percent and discussing the reasons and bases why a lesser rating was warranted, namely, because of the Veteran's failure to report for his March 2010 VA examination and lack of medical records detailing the then current level of his disability. He was duly notified of the proposed reduction in an April 2010 letter and informed that he could submit additional argument or evidence showing the reduction was unwarranted. See 38 C.F.R. § 3.105(e)(i). He was also informed that he could appear at a personal hearing. Id. After that April 2010 letter was sent, his representative submitted a statement requesting the rescheduling of the VA examination, so the examination was rescheduled for in June 2010. The RO later issued another rating decision in July 2010, so the following month, implementing a reduction in rating from 20 to 10 percent (rather than to 0 percent), and the Veteran was notified of that intended action in a letter also dated in July 2010. The effective date of the reduction would take effect prospectively as of October 1, 2010.
That April 2010 rating decision and accompanying notice letter satisfied the predetermination procedural requirements. Id. Moreover, the July 2010 RO rating decision implementing the reduction in rating from 20 to 10 percent was more than 60 days after the Veteran was notified of the reduction. Id. Accordingly, all procedural requirements for reductions in ratings under 38 C.F.R. § 3.105 were satisfied.
As the Board finds that all procedural due process requirements were satisfied with respect to the reduction in the rating, the question then becomes whether the evidence of record provided a viable basis for the rating reduction in light of the criteria set forth in 38 C.F.R. § 3.344(a) and (b).
The 20 percent rating for this right hip strain was assigned by applying the criteria set forth in VA's Rating Schedule. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3.
The Veteran's right hip disorder has been rated under 38 C.F.R. § 4.71a, DC 5252, pertaining to limitation of motion of the leg. A 10 percent rating is warranted for limitation of flexion of the thigh to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the thigh to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the thigh to 20 degrees. Finally, a 40 percent rating is warranted for limitation of flexion of the thigh to 10 degrees.
When an evaluation of a disability is at least partly based on the extent it causes limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 , 4.45, and 4.59. These factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. See Burton v. Shinseki, 25 Vet. App. 1 (2011).
But a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011) (noting that past precedent has indicated that painful motion may be equivalent to
limited motion only under the specific language and structure of the second clause of DC 5003, which allows a 10 percent rating for otherwise noncompensable limited motion of arthritic joints).
At his December 2008 VA compensation examination, the Veteran complained of right hip pain, stiffness and swelling. He reported having flare-ups two to three times a week, lasting one day each, during which he has more pain, limitations, causing him to be house bound during the flare-ups. He took prescribed medication, such as morphine, methocarbamol and gabapentin for his back and hip pain. He further stated that he sought treatment for his back and hip once every month or every other month.
On objective physical examination, the examiner observed the Veteran had a surgical scar over the lateral aspect of his hip, where he previously had had surgery. He commented that the Veteran walked with a normal gait. He was unable to sit during the examination due to pain but was able to lie down. There was some atrophy of the quadriceps musculature of the upper thigh. There was also crepitus and tenderness. The Veteran's right hip flexion was 90 degrees with pain from 85 to 90 degrees. His extension was 25 degrees with pain from 20 to 25 degrees. The internal rotation was 20 degrees with pain from 15 to 20 degrees and his external rotation was 40 degrees with pain from 5 to 40 degrees. The Veteran's right hip abduction was 40 degrees with pain from 30 to 40 degrees and his adduction was 25 degrees with pain from 15 to 20 degrees. Upon repetition, he had the same range of motion with the same pain pattern. The examiner diagnosed the Veteran with a hip strain, which was confirmed by an x-ray. It was noted that he does not have arthritis of his right hip.
On additional VA compensation examination in June 2010, the Veteran reported worsening pain in his right hip. Again, he reported having flare-ups two to three times a week, lasting one day each, during which he has more pain, limitations, causing him to be house bound during the flare-ups. He took the same prescribed medications. He stated, however, that he sought treatment for his back and hip once every month. He used a cane to walk. He reported that he could stand for 20 minutes, sit for 15 minutes, and walk for 30 minutes. It was noted that he had difficulty getting up from a sitting position because of his right hip pain. While he could bathe and eat, he had difficulty dressing, in particular putting his pants, shoes and socks on, and needed assistance. He indicated that he had last worked in 1999 as a landscaper and a factory worker but was no longer able to do so because of his back and hip problems.
Physical examination in June 2010 revealed that he walked with a limp, favoring his right leg. The examiner again noted he used a cane and described his difficulty taking his shoes and pants off. After inspecting the Veteran's right hip, he noted the surgical scar and tenderness to his right hip on palpitation. His right hip flexion was 85 degrees and his extension was 20 degrees. The Veteran's right hip internal rotation was 15 degrees and his external rotation was 35 degrees. His abduction was 40 degrees and his adduction was 20 degrees. He had pain at all the noted ranges of motion. Upon repetition, he had the same range of motion with the same pain pattern. The examiner diagnosed the Veteran with a hip strain.
Comparing the results of the December 2008 VA compensation examination with his more recent June 2010 VA compensation examination does not support the conclusion that there has been improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. The RO appears to have concluded that the range of motion of his right hip has improved, when, in actuality, to the contrary, it appears instead to have worsened. Significantly, his actual range-of-motion measurements all decreased, except for his abduction, during his June 2010 VA compensation examination in comparison to the ranges noted during his earlier December 2008 VA compensation examination. And based on the December 2008 testing, in the March 2009 rating decision the RO continued his disability rating of 20 percent. It therefore is unclear the basis of the RO's subsequent determination that his right hip strain had improved by the time of his June 2010 VA compensation examination.
In any event, the evidence demonstrates that his range of motion worsened from the time of his December 2008 VA compensation examination to the time of his June 2010 VA examination, not got better. For illustration, he had 90 degrees of flexion, with pain beginning at 85 degrees, during his December 2008 VA compensation examination, while his flexion was limited to 85 degrees, with pain beginning at 85 degrees in June 2010. Additionally, by the time of his June 2010 VA compensation examination, he was using a cane to walk. He had an increased difficulty in doing simple tasks, such as taking his shoes and pants off, as observed by the examiner.
Thus, since the medical and other evidence fails to demonstrate actual improvement in this right hip strain, the reduction in rating for this disability was unwarranted. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, and DC 5252. Consequently, restoration of the prior 20 percent rating is in order as of October 1, 2010, the date this rating was reduced to the lesser 10-percent level.
ORDER
The claim for restoration of the 20 percent rating for the service-connected right hip strain as of October 1, 2010, is granted, subject to the statutes and regulations governing the payment of retroactive VA compensation.
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs